In his remarks Monday announcing a change in law enforcement policy, U.S. Attorney General Eric Holder focused primarily on mandatory minimum sentences, which impose certain required minimum prison terms for particular drug and other offenses. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said. But there is another regime that has also inflated sentences and fostered mass incarceration, controlled by a little agency known as the U.S. Sentencing Commission.
The commission sets guidelines for judges, which provide suggested sentence ranges for crimes, along with factors for judges to consider in setting a sentence. There was a time when judges considered these guidelines mandatory. In 2005, the U.S. Supreme Court rejected that notion and held that the guidelines were merely “advisory” — giving judges more discretion when sentencing under the guidelines than they have when issuing a sentence with a mandatory minimum. But flouting these guidelines is still a basis for prosecutors to appeal a sentence, and the U.S. Supreme Court decision this term reiterated that sentencing decisions must be “anchored in the guidelines,” meaning that most judges impose sentences in or around the range in the guidelines, with some prominent exceptions. U.S. District Judge John Gleeson, a former prosecutor, explained how the guidelines has inflated sentences in one such exception:
Perhaps the best indication that the Guidelines ranges for drug trafficking offenses are excessively severe is the dramatic impact they have had on the federal prison population despite the fact that judges so frequently sentence well below them. […]
In less than a decade, from 1985 to 1991, the length of federal drug trafficking sentences increased by over two-and-a-half times. Sentences for drug trafficking were “elevated above almost every serious crime except murder.” The increase in sentence length for drug offenders “was the single greatest contributor to growth in the federal prison population between 1998 and 2010.”
We must never lose sight of the fact that real people are at the receiving end of these sentences. Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.
In another illustration of the role these guidelines have played, a recent report found that, after the Sentencing Commission announced that it would apply a 2010 law retroactively to narrow the disparity between crack and cocaine sentences, judges have already slashed a cumulative 16,000 prison years and saved half a billion dollars in incarceration costs.
The guidelines apply to offenses in which there is no mandatory minimum sentence. But the history of these guidelines tracks that of mandatory minimums. After the 1986 death of Len Bias for a drug overdose, Congress passed the Anti-Drug Abuse Act, which imposed mandatory minimum sentences for drug offenses that are largely based on the quantity of the drug, regardless of the defendant’s role in the crime. The Sentencing Commission then used the mandatory minimum drug sentences as the basis for adjusting its own sentencing recommendations upwards, using the same quantity-based recommendations at the expense of other sentencing factors.
On Thursday, the Commission took the first step toward reconsidering those sentences, as members of Congress concurrently propose several bills to roll back mandatory minimum sentences. The Sentencing Commission will consider amendments to its drug quantity-based sentencing recommendations, as well as other measures to reduce prison overcrowding. “With a growing crisis in federal prison populations and budgets, it is timely and important for us to examine mandatory minimum penalties and drug sentences, which contribute significantly to the federal prison population,” said Judge Patti Saris, chair of the commission. Thursday’s vote was a first necessary action toward relieving over-sentencing, but far from the last. Any new amendments would be submitted to Congress in May for their approval, and only after public hearings, solicited comments and other preliminary steps.